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Would You Want a Draft Text Message to be Your Will?

The news that an Australian man’s unsent text message has been accepted in Australia as a valid Will has caused a stir recently.

Under the law of certain countries, the courts are given a wide discretion to depart from the usual legal formalities for a Will – which, in England and Wales, require a document signed and witnessed by two witnesses – where the document is judged to be an accurate reflection of a person’s wishes.

A similar example, which has become the stuff of legal legend, is the case of the Canadian farmer who, whilst trapped under his tractor, scratched out on the fender: “In case I die in this mess, I leave all to the wife.” Sadly, the man did die shortly afterwards, but his Will was upheld as valid by the Canadian courts.

Curious cases such as these have abounded in other countries but, under new Law Commission proposals, these discretionary court powers could be incorporated into the law here in England and Wales. The Law Commission has proposed a number of reforms to the law, to update the rules from 1837 to reflect modern technology. As well as these discretionary powers, the Commission proposes to recognise electronic Wills and to put new rules in place to support those who would not usually be able to make Wills, perhaps due to conditions such as dementia, to do so.

The Commission consultation closed on 10 November and their conclusions are expected to appear in early 2018, so we will wait with bated breath to see whether the English courts may be flooded in future with potential Wills set out in texts and on tractors! For the time being, though, the only way to ensure that your estate passes in the way you intend is to make a Will, following the correct legal formalities.

For advice on your Will or to put a fresh Will in place, please contact the Wealth Management team for more information.